Summary of the main points of the adjudication
The gist of the judgment is 10: The relevance of witness testimony and the facts to be proved is a key point of review that is easily overlooked by defense lawyers, and in many innocent cases, although the case-handling organ has submitted multiple witness testimonies, careful examination can find that the witness testimony is not related to the key facts to be proved, and belongs to the "illusion of sufficient evidence"
Article 78, Paragraph 2 of the Judicial Interpretation of China's Criminal Procedure Law stipulates: Upon notification by the people's court, if a witness refuses to appear in court without a legitimate reason or refuses to testify after appearing in court, and the court cannot confirm the authenticity of his testimony, the witness's testimony must not be used as the basis for a verdict
Case 10: Lee Wdkin Intentional Homicide
Case No.: Guangdong Zhaoqing Intermediate People's Court (2015) Zhaozhong Law Punishment Er chu zi No. 12 First Instance Criminal Judgment
Reasons for judgment:
The public prosecution alleged that at about 12:00 on November 21, 2014, when defendant Li Wujin was basking in his own house, he saw the victim Zeng X1 enter the room on the second floor of his house without authorization, and because he suspected that the other party was stealing something, he covered Zeng X 1's head with clothes in one breath, and then grabbed Zeng X 1's neck with his hand and pressed it on the sofa in the living room, causing suffocation to death. Later, defendant Li Wujin found a packaging rope and a woven bag on the third floor of the house, tied the victim's body and packed it in a woven bag, and then drove a Yue H ××××× motorcycle to transport the body to the Hengquzai section of the Yihe Village Committee Forest Farm in Jiangtun Town, Guangning County, and threw it in the grass on the side of the mountain road. After committing the crime, in order to cover up the crime, the defendant Li Wujin fabricated the false information that the "bee catcher" found zeng Mou1's body, with the intention of diverting the direction of the public security organs' investigation.
In response to the above allegations, the public prosecution organ provided physical evidence and photographs of packaging ropes, woven bags, straps, long-sleeved tops and other material evidence extracted at the scene; witnesses Zeng X 3, Zhang X 1, Zeng X 4 and other testimonies; defendants' confessions and defenses; on-site investigation records, on-site photos, appraisal opinions, household registration materials and other evidence.
The public prosecution organ held that the defendant Li Wujin was dissatisfied with the victim because of trivial matters, so he used the means of strangling his neck to kill the victim, and afterwards threw the body into the wilderness, and his behavior constituted the crime of intentional homicide, and submitted it to this court for sentencing according to law.
Jurisprudence:
In view of the facts and evidence alleged by the public prosecution organs, this court's comprehensive analysis is as follows:
I. The physical evidence seized at the scene cannot clearly point to the defendant Li Wujin's execution of the crime. The details are as follows:
1. The public security organs extracted tissues, cigarette butts, woven bags, red packaging ropes that bound the victim's body, and wipes from the neck, periart of the mouth, nails, chest, and vagina of the victim's body at the scene of the discovery of the victim's body, and sent them for examination and appraisal, but no valid genotypes were detected in the wipes and woven bags of the neck, periart of the mouth, nails, chest, and vagina of the victim's body. Although mixed genotypes were detected on the red wrapping ropes that bound the legs and neck of the corpse, and the genotype and li wujin's blood sample genotype came from the same paternal family, the appraisal conclusion could not be used as the basis for the same determination, did not have uniqueness, and could not be determined to be left behind by defendant Li Wujin. Accordingly, neither the extract evidence at the scene of the corpse nor the biological evidence extracted from the neck of the corpse identified the genotyping of the defendant Li Wujin, and it was impossible to determine that the defendant Li Wujin was associated with the scene.
2. The public security organs extracted the blue blouse, sofa pillowcase and armrest surface cloth, 12 hairs on the armrest of the sofa, and extracted exfoliated cells on the inside of the open door at the scene of the living room on the second floor of the defendant Li Wujin Residence, and after identification by the Zhaoqing Municipal Public Security Judicial Appraisal Center, except for the mixed genotype detected by the shedding cells extracted on the inside of the open door, no valid genotyping was detected, and the appraisal document did not list the specific DNA data of the hybrid genotype detected by the exfoliated cells, and could not reflect the personnel who may be involved in the mixed DNA. After the Judicial Appraisal Center of the Guangdong Provincial Public Security Department re-identified the blue jacket, sofa pillowcase and armrest face cloth, the genotype of defendant Li Wujin was detected in the blue jacket, and the mixed genotype detected on the sofa pillowcase and armrest surface cloth excluded the genotype of the victim Zeng Mou1. Accordingly, the traces of physical evidence extracted at the scene of the living room on the second floor of the defendant Li Wujin's residence could not be confirmed to be related to the victim, and it could not be confirmed that the site was the scene of the killing of the victim.
In summary, the physical evidence extracted at the scene of the victim's body and the victim's body cannot be determined to be related to defendant Li Wujin, the physical evidence extracted in the living room on the second floor of defendant Li Wujin's residence cannot be confirmed to be related to the victim, and the physical evidence at the scene cannot be clearly pointed to defendant Li Wujin, and it cannot be confirmed that defendant Li Wujin committed the crime.
2. Witness testimony can only confirm the whereabouts of the victim before the incident and the discovery of the victim's body, and cannot confirm that the defendant Li Wujin killed the victim.
Although there are as many as 36 witnesses in this case, these witnesses only confirm the whereabouts of the victim before the crime, the discovery of the body after the crime, and the experience of the victim Zeng X2 stealing money before the incident, and the witness testimony does not reflect that the defendant Li Wujin had contact with the victim Zeng X2 before the incident, and could not link the defendant Li Wujin to the case, and could not confirm that the defendant Li Wujin killed the victim.
III. Although defendant Li Wujin confessed to killing the victim, his confession of guilt was unstable and inconsistent. The details are as follows:
1. The confession of the means of committing the crime is inconsistent. Defendant Li Wujin confessed that his use of the means of covering and pinching his neck to cause the victim's death corroborated with the autopsy appraisal conclusions, but his confession of the means of committing the crime was inconsistent, first confessing that "he dragged Zeng X1 to the sofa in the hall with his hands, and then took a green long sleeve, and the clothes marked "Zhao (Qiao) Feng Mining" covered Zeng X 1's entire head, and pressed Zeng X 1's neck with his hands across the clothes, thus strangling Zeng X 1 to death." Later, he confessed that "he grabbed Zeng Mou1's shoulders with both hands, threw the whole person on the floor, then took a green overalls to cover Zeng Mou1's head, and then used his hands to pinch the underside of Zeng Mou1's neck, pinched for about ten minutes, and then strangled Zeng Mou1 to death." Finally, he confessed that "from the back of Zeng Mou 1, he wrapped his hands around the front and forcefully hooped Zeng X 1's neck, and the left and right hands were hooped relatively, and after about five to seven minutes, he found that Zeng X 1 did not move."
2. The description of the tool for binding the corpse is inconsistent. Defendant Li Wujin's first three confessions all stated that he had bound the body with a black tie, and the first confession stated that he "directly took two black tyings (packaging ropes for construction) in the corner of the hall on the third floor and tied Zeng's hands and feet." In the last four confessions, it is also known as "tying hands and feet with red wrapping ropes". The scene inspection records and on-site photos show that the body was bound by red wrapping ropes with hands and feet.
3. The confession of whether the body was packaged was inconsistent. Defendant Li Wujin's previous three confessions of guilt said that "after tying up the body, he did not use anything to package it, directly carried the body onto the motorcycle, and put it on the back seat of the motorcycle on his stomach." The last four confessions also said that "a fiber bag and a packaging rope were taken to the second floor to tie hands and feet, and then the body was placed in a fiber bag." "A white woven bag with the print 'wheat bran' printed on it was found under the table in the hall on the third floor. ...... Stuff the body into a woven bag". Defendant Li Wujin also confessed that the fiber bag was placed on the side of the road at the scene of the body, but the front of the extracted woven bag near the scene of the body had a green pattern on the front and the words "family fun, long grain incense" and "Gushi County Xianyou Rice Processing Factory", which were obviously different from his confession.
4. The victim's confession of wearing characteristics is inconsistent. Defendant Li Wujin's previous three guilty confessions stated that "Zeng Mou1 was wearing a black shirt on his upper body and red pants on his lower body, and what shoes he was wearing, I did not pay attention to the length of his hair", and later confessed that "at that time, he was wearing a black or red shirt on his upper body, red pants on his lower body, and a pair of red sneakers on his feet." Short hair, a bit like a men's hairstyle." The scene inspection records and photos show that the victim wore a red shirt and orange pants.
In summary, defendant Li Wujin's confessions on the means of committing the crime, the tools used to bind the body, whether the body was packaged, and the characteristics of the victim's clothing were inconsistent.
IV. Although defendant Li Wujin's confession of guilt in the later paragraph is consistent with the circumstances such as the binding of the body, the state of the body, some items left behind at the scene, and the reason for the victim's death, there are still doubts about the scene where defendant Li Wujin killed the victim and his motive for committing the crime. The details are as follows:
1. The motive of defendant Li Wujin's confession is doubtful. The autopsy appraisal report confirmed that the victim's vaginal opening was damaged by 0.3 × 0.4 cm epidermis at six o'clock, while the autopsy and appraisal did not further explain whether the victim's vaginal opening was congested and whether the hymen was damaged, and the problem had not been effectively verified and reasonably explained after supplementary investigation by the public security organs, and the existing evidence could not exclude the possibility of the victim being sexually assaulted, and could not exclude the criminal motive of killing and killing the mouth. Defendant Li Wujin confessed that he killed the victim because he saw the victim go to his room to flip things and suspected that the victim had stolen property. However, defendant Li Wujin knew that the victim had bad habits and still let the victim stay alone in his building, which was contrary to common sense. At the same time, the available evidence shows that the defendant Li Wujin has no contradictions with the victim and his family, and even if the victim is found to have stolen property, he will not directly kill the victim. Based on this, the motives of the crime confessed by defendant Li Wujin are questionable.
2. The fact that defendant Li Wujin used clothes to cover the victim's head is in doubt. Autopsy reports reported injuries to the back of the nose, the flanks of the nose, the lateral flanks of the nasal wing, the front of the neck, and the left side of the neck. Defendant Li Wujin confessed that he had used the words "Qiao Feng Mining" to cover the victim's head with his hands and pinch the victim's neck with both hands and press the victim's face on the sofa, and clearly stated that the clothes had not been washed after committing the crime, and according to common sense, the clothes should leave traces and physical evidence of the victim. However, the clothes only detected the genotype of defendant Li Wujin, but did not detect the victim's genotype, and the partial confession of defendant Li Wujin contradicted the appraisal conclusion.
3. The scene of the victim's murder cannot be determined. The scene where the body was found was about 5 kilometers away from the zengkun village where the victim and defendant Li Wujin lived, and the victim was a minor who was only 7 years old, and it was impossible for him to go to the remote scene alone, and no traces of the crime were found at the scene, so it can be determined that the scene where the body was found was not the scene where the victim was killed. Although defendant Li Wujin confessed to killing the victim on the second floor of his residence and tying up the body on the first floor, the hair extracted at the scene failed to detect a valid genotype, and the mixed genotype detected on the sofa pillowcase and armrest surface cloth excluded the genotype including the victim. Therefore, there is no trace of physical evidence at the scene associated with the victim, and it is difficult to determine that the murder scene is the building where the defendant Li Wujin lives.
In summary, although the evidence provided by the public prosecution organ can confirm the fact that the victim Zeng X1 was killed and the body was found by the defendant Li Wujin afterwards, the public prosecution organ accused the defendant Li Wujin of killing the victim mainly based on the defendant Li Wujin's confession of guilt, and his confession of guilt was inconsistent and did not receive other evidence to corroborate it. The evidence in this case has not yet reached the standard of proof of "credible and sufficient evidence", which is not enough to prove that defendant Li Wujin killed the victim.
Case 11: Yang Wenxiang's crime of gathering a crowd to disturb social order
Case No.: Shanxi Xinzhou Intermediate People's Court (2018) Jin 09 Xing Zhong No. 324 Second Instance Criminal Judgment
In late December 2013, Yang Xiusheng, director of the village committee of Xima Village in Zaolin Town, Dai County, and Yang Minggao and Liu Guobin, members of the village committee, resigned their respective posts. Due to the vacancy in the post of secretary of the party branch in Xima Village at that time, the joint meeting of the party committee and the government of Zaolin Town decided to set up a working group for the by-election of the "two committees" in Xima Village, with Guo Mou, chairman of the town people's congress, as the leader of the working group, Lang Mou, secretary of the town discipline inspection, and Zhang Mou1, a town government worker, as members of the working group.
In the previous period of time, some villagers in Xima Village, including Yang Wenxiang and Yang Mou1 (already judged), repeatedly reflected to the county government, the Bureau of Letters and Visits, the Discipline Inspection Commission and other departments due to problems such as accounting affairs, land acquisition for factories, and land in Zhongzui, etc., but there was no clear result of handling. During this period, some of the villagers involved in the petition sometimes talked about the relevant petitioning matters at Yang Wenxiang's house. At the time when the zaolin town party committee and government decided to conduct a by-election for the "two committees" in Xima Village, some villagers believed that the relevant departments should first solve the problems reflected before conducting cadre elections.
At about 10:00 a.m. on January 25, 2014, the working group organized a meeting on the by-election of the secretary of the Xima village branch in the office of the Xima Village Committee, which should be 33 party members and 23 actually, and the number of party members who agreed to the election was about 12 after a show of hands. During the meeting, some party members proposed that the problems reflected by the villagers should be solved before selecting cadres, and then Yang Mou1, a non-party member villager present, began to express his disagreement with the election, and his emotions were fierce. Some villagers outside the venue poured into the office of the village committee after hearing the noise, but the meeting was suspended due to the chaos.
On the morning of February 20, 2014, the working group went to Xima Village to organize a meeting to establish the Election Committee of the Village Committee for by-election. At the venue, some villagers, including Yang Mou1, proposed to solve the problems reflected before conducting elections, and then the order of the venue was chaotic and the meeting was suspended.
Based on the facts and evidence ascertained in this case, combined with the opinions of both parties, this court's comprehensive judgment is as follows:
(1) Regarding whether Yang Wenxiang has ever "directed" Yang Mou1
Based on a comprehensive analysis of the evidence in the whole case, the original judgment found that the direct evidence of the appellant Yang Wenxiang's "proposal not to make the election successful" was mainly Yang Mou1's confession at the public security organ and the testimony of witness Yang Mou2. After investigation, Yang Mou1 was sentenced to one year and five months in prison by the Dai County People's Court for the crime of gathering a crowd to disturb social order. He made five confessions (Chen) to the investigating organs, the last of which was explicitly mentioned for the first time when Yang Wenxiang told him that he could not let the election succeed. Witness Yang Mou2 testified at the public security organ that Yang Mou1 interfered with the election at the venue at the behest of Yang Wenxiang, because the relevant personnel had held a meeting at Yang Wenxiang's home, and Yang Wenxiang called himself and said that he could not let the election succeed. In the evidence in the case, witnesses Yan X2, Peng X, Gao X, and others, as those who had discussed petitioning matters at Yang Wenxiang's home, all believed that the relevant departments should first solve the problems reflected before conducting the cadre election, and did not mention Yang Wenxiang's words and deeds proposing to prevent the election. The appellant, Yang Wenxiang, initially denied that he had instructed others to block the election. During the second-instance trial, the defender applied in writing for Yang Mou2 to appear in court to testify, and upon notice by this court, he refused to appear in court without a legitimate reason, so the authenticity of his testimony in the investigating organ could not be confirmed, and it must not be used as the basis for a verdict. In the second-instance trial, Yang Mou1 claimed that Yang Wenxiang had not instructed him to prevent the election, and said that the statement he issued during his detention center had the intention of shirking responsibility, so Yang Mou1's confession made by the investigation organ could not be used as the basis for a verdict. In summary, the original judgment held that the appellant Yang Wenxiang actively organized others to gather to disturb social order, which lacked evidence to confirm.
(2) The question of whether the case has caused serious losses
The crime of gathering a crowd to disturb social order is objectively manifested as gathering a crowd to disturb social order, and the circumstances are serious, making work, production, business and teaching, scientific research, and medical treatment impossible, and causing serious losses. This court believes that, first of all, the existing evidence cannot reflect that there is a legal causal relationship between the work of spring ploughing irrigation and low-security review that cannot be carried out on time and Yang Wenxiang's behavior; secondly, the evidence submitted by the procuratorial organs accusing Yang Wenxiang of constituting a crime is mainly verbal evidence, and it cannot prove that there are "serious losses" required by the criminal law in this case, that is, public and private property or economic construction, teaching, scientific research, medical treatment, etc. have been seriously damaged and damaged.
This court held that the existing evidence could not prove that the appellant Yang Wenxiang had committed or instructed others to carry out the act of gathering a crowd to disturb social order and causing serious losses, and the original judgment found that it constituted a crime, the facts were unclear, the evidence was insufficient, and he should be acquitted according to law. The grounds for appeal and defense opinions put forward by the appellant Yang Wenxiang and the defender were adopted by this Court.
This article is partially reproduced by ding Guangzhou's lawyer team members in the "Eleven Key Points and Points of Defense of Witness Testimony" | 4533 Results of The Second Study of Acquittal Cases. Ding Guangzhou's legal team has a relatively fixed member of eight lawyers, most of whom have experience in the front-line work of the Public Prosecution Law, and the "Forty Years of the Opening of the People's Courts" issued by the General Office of the Supreme People's Court has four major criminal cases in Shenzhen, and the team members have participated in three.